Norma Guerrero, Complainant,v.John E. Potter, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity CommissionMay 15, 2009
0120071405 (E.E.O.C. May. 15, 2009)

0120071405

05-15-2009

Norma Guerrero, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Pacific Area), Agency.


Norma Guerrero,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service

(Pacific Area),

Agency.

Appeal No. 0120071405

Agency No. 1F853002706

DECISION

On January 22, 2007, complainant filed an appeal from the agency's

December 28, 2006 final decision concerning her equal employment

opportunity (EEO) complaint alleging employment discrimination in

violation of Title VII of the Civil Rights Act of 1964 (Title VII), as

amended, 42 U.S.C. � 2000e et seq., and Section 501 of the Rehabilitation

Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.

The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a). For the

following reasons, the Commission AFFIRMS the agency's final decision.

BACKGROUND

On July 28, 2006, complainant filed an EEO complaint alleging that she

was discriminated against on the bases of race (Hispanic), national origin

(Hispanic), and disability (bilateral Carpal Tunnel Syndrome) when: (1)

on February 20 and 22, 2006, she was removed from the Tour Superintendent

Office and made to work in a different area, and on February 22, 2006,

she was reassigned to the same work area where her on-the-job injury

occurred; and (2) the Manager of Distribution Operations (M1) tried

to force her to work a job offer without clearance from her doctor and

threatened that she would not get paid for refusing a job offer.1

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of her right to request

a hearing before an EEOC Administrative Judge (AJ). When complainant

did not request a hearing within the time frame provided in 29 C.F.R. �

1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. �

1614.110(b). The decision concluded that complainant failed to prove

that she was subjected to discrimination as alleged.

Issue 1

Complainant alleged that on March 17, 2006, the Acting Supervisor of

Distribution Operations (S1) presented her with a letter stating that

she was to return to work on the workroom floor. Complainant further

testified that she informed S1 that her physician (P1) had to approve this

new job offer and that she had an appointment with him on or around April

7 or 8, 2006. Complainant further alleged that on April 12, 2006, S1

came into the office to ask about the status of complainant's physician's

review and she told him to speak with the Injury Compensation Specialist

(ICS).

M1 testified that she made the decision to reassign complainant to a

different job. M1 stated the Injury Compensation Office provided her with

complainant's restrictions, and she was informed that the job was within

complainant's restrictions. M1 further testified that, while complainant

informed her that she could not perform the job, she failed to produce

additional documentary medical evidence despite numerous requests.

After waiting over a month for the requested medical documentation,

M1 reassigned complainant to "waste mail."

M1 also stated that, although complainant had been working in the Tour

Superintendent's Office, her actual job assignment was to perform work

in Manual Operations. M1 testified that during the relevant time period

all employees with on-the-job injuries were being required to update their

restrictions and were provided work in their original Pay Location (P/L).

M1 testified that complainant was never assigned back to the area where

her injury occurred, but that she was assigned to the same P/L with

different job duties within her medical restrictions. M1 noted that

complainant never actually held a position in the Tour Superintendent's

Office and contractually should not have been working in that office.

M1 further stated that she had received grievances from the American

Postal Workers Union (APWU) that complainant was doing Clerk work in

the office because she had been working in the office instead of the

relief employee who held the bid job. M1 testified this became a problem

contractually and there was never a need for complainant to work there

to begin with. However, complainant was provided work there because of

her on-the-job injury.

Issue 2

Complainant alleged that, on June 2, 2006, M1 informed her that she was

reassigning complainant and that she had another job offer for her.

Complainant further asserts that she advised M1 that she was already

placed in an assigned job from the Department of Labor (DOL). According

to complainant, M1 stated that as of June 5, 2006, she wanted complainant

back on the workroom floor. Complainant further claims that M1 told

her that if she failed to accept the job offer she would not get paid.

M1 testified that she did not force complainant to do work without

clearance from her physician, nor did she threaten complainant in any

manner. Rather, M1 states that she offered complainant work within her

medical restrictions. M1 also stated that she explained to complainant

that if she refused a job offer that the Injury Compensation Office

provided to her and she was physically capable of doing the job she would

be sent home. M1 also states she told complainant that she could not

pick which "room" she worked in, and that the only difference in the job

offer was the location on the workroom floor. M1 stated she would not

pay an employee to stay home if it was their choice, and in this case,

it would have been a personal choice that did not have anything to do

with complainant's restrictions. M1 further stated that complainant did

not provide any new documentation to substantiate her claim for further

restrictions at that time.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant

to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo

review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management

Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that

the de novo standard of review "requires that the Commission examine

the record without regard to the factual and legal determinations of the

previous decision maker," and that EEOC "review the documents, statements,

and testimony of record, including any timely and relevant submissions

of the parties, and . . . issue its decision based on the Commission's

own assessment of the record and its interpretation of the law").

Disability Claim

As an initial matter, in order to prove a violation of the Rehabilitation

Act, complainant must establish that she is a "qualified individual

with a disability" within the meaning of the Rehabilitation Act.

An "individual with a disability" is one who: (1) has a physical or mental

impairment that substantially limits one or more major life activities;

(2) has a record of such impairment; or (3) is regarded as having such

impairment. 29 C.F.R. � 1630.2(g). Major life activities include,

but are not limited to, caring for oneself, performing manual tasks,

walking, seeing, hearing, speaking, breathing, learning, and working. 29

C.F.R. � 1630.2(i). A "qualified" individual with a disability is one

who satisfies the requirements for the employment position she holds or

desires and can perform the essential functions of that position with

or without reasonable accommodation. 29 C.F.R. � 1630.2(m).

A Federal agency must make reasonable accommodation for the known

physical or mental limitations of a qualified employee unless the agency

can demonstrate that the accommodation would impose an undue hardship

on the operation of its program. 29 C.F.R. � 1630.9(a). Reasonable

accommodation includes, inter alia acquisition or modification of

equipment. 29 C.F.R. � 1613.704(b); See also, Lowery v. United States

Postal Service, EEOC Appeal No. 01961852 (October 31, 1997).

We find that complainant failed to present sufficient evidence in

support of a reasonable accommodation claim. Assuming for purposes

of this decision that complainant is an individual with a disability

within the meaning of the Rehabilitation Act, the record nevertheless

shows that complainant failed to provide the agency with sufficient

medical documentation in response to M1 and S1's requests for additional

information. Moreover, the evidence in the record is insufficient

in proving that complainant was required to perform tasks outside her

medical restrictions. Accordingly, the record does not support a finding

that complainant was denied a reasonable accommodation.

Disparate Treatment

In the absence of direct evidence of discrimination, the allocation of

burdens and order of presentation of proof in a Title VII case alleging

discrimination is a three-step process. McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation

for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976),

aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to

retaliation cases). First, complainant must establish a prima facie

case of discrimination by presenting facts that, if unexplained,

reasonably give rise to an inference of discrimination; i.e., that a

prohibited consideration was a factor in the adverse employment action.

McDonnell Douglas, 411 U.S. at 802. Next, the agency must articulate a

legitimate, nondiscriminatory reason(s) for its actions. Texas Department

of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency

is successful, then the complainant must prove, by a preponderance of

the evidence, that the legitimate reason(s) proffered by the agency was

a pretext for discrimination. Id. at 256.

The agency articulated a legitimate, non-discriminatory rational for its

decision to reassign complainant (i.e., complainant was not needed in

her current position and other employees had greater contractual rights

to the desired position over complainant). Moreover, complainant failed

to present evidence to show that management's explanation was pretext

or based upon discriminatory animus.

CONCLUSION

Accordingly, upon review of the record we conclude that the preponderance

of the evidence does not establish that discrimination occurred.

Accordingly, we AFFIRM the final agency decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the

policies, practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, must be filed

with the Office of Federal Operations (OFO) within thirty (30) calendar

days of receipt of this decision or within twenty (20) calendar days of

receipt of another party's timely request for reconsideration. See 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests

and arguments must be submitted to the Director, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 77960,

Washington, DC 20013. In the absence of a legible postmark, the request

to reconsider shall be deemed timely filed if it is received by mail

within five days of the expiration of the applicable filing period.

See 29 C.F.R. � 1614.604. The request or opposition must also include

proof of service on the other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. Any supporting documentation

must be submitted with your request for reconsideration. The Commission

will consider requests for reconsideration filed after the deadline only

in very limited circumstances. See 29 C.F.R. � 1614.604(c).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0408)

You have the right to file a civil action in an appropriate United States

District Court within ninety (90) calendar days from the date that you

receive this decision. If you file a civil action, you must name as the

defendant in the complaint the person who is the official agency head

or department head, identifying that person by his or her full name and

official title. Failure to do so may result in the dismissal of your

case in court. "Agency" or "department" means the national organization,

and not the local office, facility or department in which you work. If you

file a request to reconsider and also file a civil action, filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1008)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request from the Court that

the Court appoint an attorney to represent you and that the Court also

permit you to file the action without payment of fees, costs, or other

security. See Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,

29 U.S.C. �� 791, 794(c). The grant or denial of the request is within

the sole discretion of the Court. Filing a request for an attorney with

the Court does not extend your time in which to file a civil action.

Both the request and the civil action must be filed within the time

limits as stated in the paragraph above ("Right to File a Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

May 15, 2009

Date

1 On February 21, 2006, complainant raised an additional allegation as

follows: M1 stated that another reason for removing complainant from the

Tour Superintendent Office was because complainant had been overheard

saying that "all supervisors are assholes." The agency dismissed this

claim on the grounds that it failed to state a claim upon which relief

could be granted. We agree with the agency in concluding that this

allegation does not state a cognizable claim under 29 C.F.R. � 1614.103

or 1614.106(a). We also note that complainant does not raise this issue

on appeal.

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0120071405

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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